How the Voting Rights Act Could Be a Path to Police Reform

A successful template for providing meaningful protection to black voting rights already could work to hold police departments accountable.

The U.S. Justice Department picked the week of the second anniversary of the death of Michael Brown, who was killed on August 9, 2014, by Ferguson police officer Darren Wilson, to release the findings of its investigation into the Baltimore Police Department. That investigation was triggered by the death of another African American, Freddie Gray, who died on April 19, 2015, after succumbing to nearly decapitating injuries sustained while in the custody of Baltimore police.

Both killings led to massive urban unrest, led by people frustrated with police violence and a lack of accountability for police misconduct. No police officer has been found criminally responsible for the deaths of either of those two young black men in Ferguson or Baltimore, which has further reinforced the idea that police accountability is practically nonexistent.

Said the Leadership Conference on Civil and Human Rights in a press release response to the DOJ’s latest police investigation in Baltimore:

This is not just Baltimore’s story; it’s the story of over-policed communities of color nationwide. The Department of Justice has documented heinous mistreatment of minorities in Cleveland, Ferguson, New Orleans, and elsewhere and deep-seated racial disparities persist nationwide at every juncture of the justice system. … As the evidence continues to mount in reports, statistics, dead bodies, and bereft families, we urge Congress to finally start taking police reform seriously.

So say the Co-Director of the Program in Constitutional Theory, History & Law at the University of Illinois at Urbana-Champaign, Jason Mazzone, and Stephen Rushin, a law professor at the University of Alabama.Their paper, “From Selma to Ferguson: The Voting Rights Act as a Blueprint for Police Reform,” argues that the civil rights law passed in 1965 to mitigate voter discriminationalso offers guidance on how to mitigate rogue policing.

Under the Voting Rights Act, Congress created a formula that determines which areas of the country warrant federal supervision over their election affairs. That formula was derived by looking at where African Americans were prevented from voting due to obstructions such as literacy tests and poll taxes. It also includes places with historically low voter-registration and turnout rates among African Americans.

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A similar formula could be applied to areas where police departments have been found guilty of engaging in patterns and practices of racial discrimination and misconduct, write Rushin and Mazzone. The Justice Department has already established that such patterns exist in police departments not only in Ferguson and Baltimore, but also Newark, Cleveland and New Orleans. There are currently more than 20 police departments being monitored by the Justice Department due to police misconduct.

In those cities, the federal government has intervened in local policing matters—but only after damning video footage has emerged, riots have broken out, or both. Right now, the Justice Department can only react to disasters. The formula works for putting out fires in one city, but meanwhile, another (or several) starts to blaze, as we’ve seen this summer.

“We think that model of waiting until something so terrible that it results in mass protests, and then responding after the fact, is basically the wrong way to go about this,” Rushin tells CityLab.

Fortunately, as he and Mazzone remind readers in their paper, we’ve encountered this kind of problem before. From their report:

And although the federal government has powers to investigate and pursue police misconduct, current constraints—resource limits, a lack of data, evidentiary requirements, and evasive tactics by police departments—limit the punch those powers can deliver. Yet these problems are not unprecedented. Five decades ago, similar hurdles stood in the way of remedying racial discrimination in voting rights. Recognizing the limits of the existing tools to confront such discrimination, Congress adopted a whole new approach with the Voting Rights Act of 1965.

The Voting Rights Act has worked well to get in front of embedded, race-based types of voter discrimination. It’s allowed the Justice Department to proactively monitor the voting-rights practices of the jurisdictions covered by the act’s formula.It’s also empowered the DOJ to reject election plans and decisions that could potentially cause damage to African Americans’ voting rights. It’s a prophylactic measure that stops civil rights harms before they happen, instead of having to later piece together what had already been broken.

Why not utilize the same measure for police departments? After all, as Rushin and Mazzone state in their paper, “It is more serious to be the subject of a bullet wrongly fired than a ballot wrongly denied.”

Rushin acknowledges that their proposal is “pretty ambitious,” given the slim-to-nil chances that Congress can come together for anything these days. Not to mention that the formula Congress created in 1965 for the VRA (and then reauthorized four times after) was recently dismantled by the U.S. Supreme Court. Chief Justice John Roberts was kind enough to allow Congress to create a new coverage formula, to keep the VRA’s most essential powers intact, but Congress has yet to rise to that challenge.

So what makes Rushin and Mazzone think Congress has the political will to produce a coverage formula for police departments?

They don’t. Their proposal is more of a best-case hypothetical of what could happen—with a functional legislative branch. In that ideal setting, here’s how Congress would create a VRA-like coverage formula for policing:

First, Congress would need to require better data collection from law enforcement officials. Police departments currently do a lousy job at collecting data on police misconduct, and the few that do are anything but forthcoming about sharing that data with the public. Congress does an even lousier job asking police departments to collect such data.

Secondly, Congress would use that data to set a suite of criteria that would set the baseline for which police departments should be covered. One criterion could be the kind of findings the DOJ made in Ferguson and Baltimore. But other indicators could be things like the amount of money a city has paid out in civil-suit settlements, or the number of citizen complaints filed on police misconduct. Data that show that African Americans have been stopped, frisked, and searched at higher rates than whites, as was found in Ferguson and Baltimore, could also work.

In Rushin and Mazzone’s proposal, the Justice Department would have the power to impose certain reforms on police departments found to have a history of these kinds of violations. Some of those reforms would include mandatory body cameras, early-intervention systems (to identify and contain potentially rogue police), and independent-oversight mechanisms for managing citizen complaints. Yes, these are the kinds of reforms that are already typically imposed through federal consent decrees. However, again, for a VRA-fashioned treatment, these would be imposed on a police department before a major policing disaster.

There are, of course, other obstacles to making this kind of dreamed law a reality. Such obstacles are anticipated in Rushin’s and Mazzone’s paper. For one, reforms like these are expensive and tend to stretch city budgets. It’s hard enough getting cities to buy in to police reforms in the wake of disasters; even Ferguson tried to weasel out of paying for reforms despite the high-profile killing of Michael Brown and the ensuing riots. Rushin says that’s no excuse, though.

“It’s a barrier for poor cities suffering from budget shortfalls, but the reality is there is no context where we say, ‘There are constitutional minimums you have to protect unless you don’t have the money to do so.’ That’s not a thing,” says Rushin. “You can’t get out of Miranda just because it’s expensive to do. You can’t get out of providing people attorneys whenever they’re charged with crimes just because it’s expensive to do. And similarly, you can’t get out of providing minimally effective and constitutional policing just because it’s expensive.”

Police funding is a contentious thing. The recent policy platform released by the Movement for Black Lives calls for disinvesting in police departments. The much more moderate NAACP said in response to DOJ’s investigative findings of Baltimore’s police department that “the threat of defunding can be a powerful tool for change.”

Rushin says he understands this sentiment, but that this approach won’t work to achieve the reform goals needed to reduce police violence.

“As long as we’re going to have police officers in our communities, you have to be willing to invest in the resources needed to monitor and regulate those police officers,” says Rushin. “We shouldn’t let our rightful concerns about over-policing, or inappropriate military technology that maybe local law enforcement shouldn’t have, cause us to ignore the fact that correcting police misconduct requires a monetary investment.”

There are other problems Rushin’s proposal anticipates, such as worries over federalism and the usual state’s rights rebuttals. Allowing the Justice Department this kind of preemptory invasion into local matters is something often rejected in far less chargedscenarios. But the VRA has already fought many of those battles already. There have been numerous court challenges to the VRA on those same grounds since the law was first passed in 1965. But the U.S. Supreme Court ruled in the 1966 South Carolina vs. Katzenbachcase, in response to those challenges, that “exceptional conditions … can justify legislative measures not otherwise appropriate.”

The “exceptional condition” back then was voter discrimination (a problem that hasn’t gone away). Rushin says that, in the era of Michael Brown and Freddie Gray, we’ve reached a new but different set of exceptional conditions. The deep extent of policing problems listed in the DOJ investigations into the Ferguson and Baltimore police departments appear to support that argument.

It is also true that the 2013 Shelby County v. Holder SCOTUS decision did considerable damage to the VRA’s powers. However, as Rushin’s paper points out, SCOTUS did not declare the VRA coverage formula itself unconstitutional; it only ruled that the formula employed at the time needed updating. Rushin responds in his paper:

Shelby County itself thus supports federal regulation to remedy abusive police practices. Police misconduct today looks much more like the record of voter discrimination that was before the Court in Katzenbach than was before the Court in Shelby County. Current conditions might not support a decades-old voting formula. But current conditions do support a law identifying and reigning in police departments that violate rights.

Boston University criminal justice professor Shea Cronin says one problem with this concept lies in the number of Justice Department officials available for adequate local police oversight.

“There’s not enough of them,” says Cronin. “The civil rights division (of the Justice Department) simply doesn’t have the resources. I think just extending its resources would go along way toward them being able to say, ‘Look, these are the minimum standards for policing, and if you don’t meet them, then the federal government will bring a lawsuit against you.’”

As we look back at the killing of Michael Brown by police two years ago and think about what was most chilling about it, the image of Brown’s dead body can’t help but now stay embedded in our heads. Whatever happened between Brown and Wilson before that moment, all we’ve seen is a few red marks on Wilson’s face, compared with footage of Brown’s lifeless body laying in a trail of blood, like roadkill. We have similar upsetting images emblazoned in our psyches of Freddie Gray’s mangled anatomy, Sandra Bland’s corpse, Breaion King being body-slammed on concrete in Austin, Alton Sterling and Philando Castile dying in real-time video.

Some police departments are only concerned with reform to the extent it’s about hiding footage of such disturbing images from public view, or about making it a hate crime to defend yourself from police violence. Rushin’s and Mazzone’s proposal attempts to position the reform discussion squarely on preventing police violence to begin with—hopefully eliminating further such traumatizing images from ever existing.